A pre-nuptial agreement is a contractual agreement entered into between a couple before their marriage to record their agreement about a financial settlement if they separate and divorce in future.
Older couples, finding love later in life, who have significant assets including inheritance or family wealth, and couples entering a second marriage with no intention to have more children are likely to be interested in pre-nuptial agreements because it allows them to protect their existing assets on separation or divorce.
Although a pre-nuptial agreement is not strictly binding, the Court will consider the agreement as ‘one of the circumstances of the case’, unless it would not be fair to hold the parties to their agreement.
The Supreme Court in the case of Radmacher v. Granatino  held that for the Court to uphold or give considerable weight to the terms of a pre-nuptial agreement, the parties must have entered the agreement of their own free will, free from pressure and with full appreciation of its implications. There have been more recent cases where the Courts have entirely upheld or given considerable weight to pre-nuptial agreements, even in cases where the agreement may be less advantageous to one party or because of the way the other party conducts the litigation.
In shorter marriages, or where the parties needs and the needs of any children can be met from other assets or income, the court will not depart significantly from the terms of a pre-nuptial agreement which tries to ring fence assets owned prior to the marriage.
After longer marriages, or where one party has health problems, or is long term unemployed, or where earnings are restricted by childcare obligations the court will look more closely at the agreement and whether it may need to depart from the terms to meet needs.
At the Family Law Company have specialist family lawyers who are experienced in drafting a wide range of pre-nups, from multi-million agreements with complicated assets to smaller agreements covering property and inheritance.
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